Bill 42 and the Administrative Reorganization of Labour Bodies

July 22, 2015

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In our Bulletin of May 6, 2015, we outlined the scope of Bill 42, entitled “An Act to group the Commission de l’équité salariale, the Commission des normes du travail and the Commission de la santé et de la sécurité du travail and to establish the Administrative Labour Tribunal”. The Bill aims to reorganize the administrative structures dealing with labour matters and is part of the efforts being made by the Government of Québec to reform public finance.

In the meantime, the Government has made certain amendments, the most important of which will be reviewed in this Bulletin, and the Bill was finally assented to on June 12, 2015. The new structures will become operational as of January 1, 2016, the date when the main provisions of the Bill will come into force.

As mentioned in our May 6, 2015 Bulletin, the Bill establishes a new tribunal, called the Administrative Labour Tribunal (the “Tribunal”). This new Tribunal will assume the jurisdiction of the Commission des relations du travail (the “CRT”) and the Commission des lésions professionnelles (the “CLP”). It will include four divisions, tasked with adjudicating different sorts of labour-related disputes:

The Labour Relations Division will adjudicate matters resulting from the application of the Labour Code and the Act respecting labour standards (recourses against dismissals not made for good and sufficient cause, psychological harassment claims, motions for union certification, etc.).

The Occupational Health and Safety Division will handle cases arising from the application of the Act respecting industrial accidents and occupational diseases (the “AIAOD”) and of the Act respecting occupational health and safety in inspection matters.

The Essential Services Division will rule on disputes pertaining to the provisions of the Labour Code relating to essential services.

The Construction Industry and Occupational Qualification Division will decide claims arising under the Act respecting labour relations, vocational training and workforce management in the construction industry.

In addition, the Bill groups together the activities of the Commission de l’équité salariale (the “CÉS”), the Commission sur les normes du travail (the “CNT”) and the Commission de la santé et de la sécurité du travail (the “CSST”) under the authority of a new commission, to operate under the name of the “Commission des normes, de l’équité, de la santé et de la sécurité du travail (the “Commission”).

In this regard, and as pointed out by the Conseil du Patronat du Québec (the “CPQ”)1, the new Commission’s management will have to take appropriate measures to avoid conflicts of interest in cases that raise related issues in the administration of different regimes. For example, the CPQ refers to situations of psychological harassment, which may be the subject of labour standards complaints, as well as of claims for occupational injuries – matters subjected to different criteria of evaluation, depending on what legal regime is applicable to them. As mentioned by the CPQ, preventing conflicts of interest will not stop there. It will also be necessary in the operations of the new Commission’s legal services, to the extent that some of the lawyers of that body will be called upon to represent employees under the Act respecting labour standards.

Among the substantive amendments that the Bill contains, we find, in particular:

Abolition of members of the employers’ and unions’ associations who sit with the administrative judges of the CLP on matters relating to the application of the AIAOD. The president of the new Tribunal will be authorized to assign one or more assessors to advise a member sitting in the Occupational Health and Safety Division on any question of a medical, professional or technical nature.

A worker will henceforth be able to intervene before the Tribunal in an application for cost sharing filed by his or her employer by reason of the employee’s pre-existing disability.

The Bill also provides for the replacement of the present article 47.3 of the Labour Code by a new provision which would widen the scope of application of any employee’s complaint alleging the failure of a certified employee association to perform its duty of representation, and requesting
the complaint to be referred to arbitration. Such complaints will no longer be limited to cases of dismissal, disciplinary sanctions or psychological harassment.

The scope of application of section 98 of the Pay Equity Act is also being widened, since a certified employee association or an employer, in case of a disagreement over any joint pay equity audit, may submit their dispute to the Commission.

Employers’ rates of contribution under the Act respecting labour standards, which will also finance pay equity-related activities, will drop from 0.08% to 0.07% of salaries subject thereto, effective January 1, 2017, i.e. one year after the coming into force of the Bill.

The following is a list of the major amendments made to the Bill before it was assented to:

The name first assigned to the commission that will group together the activities of the CÉS, the CNT and the CSST was “Commission des droits, de la santé et de la sécurité du travail”. The name finally chosen by the legislator is “Commission des normes, de l’équité, de la santé et de la sécurité du travail”.

The Minister of Labour, Employment and Social Solidarity has undertaken to create a labour standards advisory committee, whose role will be to provide its opinion on any matter that the Minister or the Commission submits to it concerning the carrying out of the Bill. This Committee will consist of at least one person from each of the following groups: non-unionized employees, unionized employees, employers from the big business sector, employers from the small and medium-sized business sector, employers from the cooperative sector, women, young people, families and cultural communities.

In principle, your cases in progress before labour-related administrative and judicial bodies should not be significantly affected by the coming into force of the Bill. The implementation of new legislation, however, always brings with it a number of uncertainties. It will be interesting to see how the members
of the Commission and of the Tribunal will administer this major reform of labour structures. Should you have any questions, comments or concerns about the Bill, we invite you to contact the author of this bulletin or any other members of our Labour and Employment Law Group.